Tensions are high as Donald Trump, the new U.S. President, continues to test the boundaries of the U.S. political and legal systems. The most recent clash pits the U.S. Constitution against Trump for what appears to be the first time the President — and perhaps even Trump the man — is subject to limits. Whether one agrees with Trump and his policies, as responsible citizens, businesspeople, scholars and practitioners, this most recent debate over his so-called travel ban requires us to look beyond any prejudices against Trump the man, and take a meaningful look at the constitutional and legal aspects of the Executive Order itself based on various court decisions issued over the last few weeks.
What Happened?
On January 27, 2017, the President issued Executive Order 13769 entitled Protecting the Nation from Foreign Terrorist Entry Into the United States (“the Order”). There was a substantial and immediate effect felt by many throughout the U.S. and abroad which gave rise to various lawsuits seeking to temporarily suspend the Order. In most instances, the Plaintiffs sought Temporary Restraining Orders (“TROs”) with the objective of issuing a non-permanent stay on the enforcement of the Order and, in most cases, they were granted. Subsequently, the various parties sought to convert those temporary TROs into Preliminary Injunctions (to make them permanent); or, in the case in the State of Washington, the Government (the Trump Administration) sought to have the TRO lifted.
“What is clear is that the U.S. Constitution and its institutions are alive and working.”
As result of these cases, conflicting decisions came out of two different District Courts in the U.S. On February 3, the District Court of Washington imposed a nation-wide TRO, while, on the very same day, the District Court of Massachusetts lifted a previous TROs and refused to provide further injunctions against the Order. The Government filed an emergency motion to stay the Washington TRO in the Court of Appeals of the Ninth Circuit. A 3-judge panel of the Ninth Circuit, on February 9, issued a unanimous ruling in which it decided to maintain the nation-wide TRO. Accordingly, the Order as it relates to Sections 3(c), 5(a) and 5(b), was invalided.
What Does The Executive Order Say?
As stated therein, the Order’s aim is to protect national security and to provide a period of review of current immigration and entry procedures into the U.S. The Order in its entirety has not been challenged; only Sections 3(c), 5(a) and 5(b) are at issue. Section 3(c) suspends entry into the United States to those immigrants and nonimmigrants for 90 days who are nationals from Iraq, Iran, Somalia, Libya, Yemen, Syria and Sudan.
Section 5(a), in short, suspends entry into the U.S. of all refugees for 120 days, and Section 5(b) goes on to allow the Secretary of State, with consultation by the Secretary of Homeland Security, to “…prioritize refugee claims made by individuals on the basis of religious-based persecution, provided that the religion of the individual is a minority religion in the individual’s country of nationality.”
Although the decisions issued by the courts do not include an analysis of these Sections, it is important to mention that Sections 3(g) and 5(e) provide for case-by-case review by the Secretary of State in conjunction with the Secretary of Homeland Security “…when the person is already in transit and denying admission would cause undue hardship.”
What Did The Courts Decide?
Section 3(c) denies entry to “immigrant and nonimmigrant” nationals from the 7 countries “of concern” for 90 days. The major mistake of the order is that it does not clearly distinguish between legal permanent residents (“LPRs”) and other visa-holders. In the U.S., there are several types of immigration statuses: LPRs, those that are on a path to being LPRs, tourists, temporary workers, student visa-holders or even undocumented persons, just to name a few. Well-established rules do not afford the same protections to all statuses. For example, the law clearly extends full constitutional protection to LPRs, but only Fifth Amendment Rights (due process) to those non-immigrants who are physically in the U.S. Even still, a refugee who is overseas applying to enter the U.S. does not have any constitutional rights under U.S. law.
Most agree that if applicable to LPRs, Section 3 is invalid and the White House issued a statement clarifying that the Order does not apply to LPRs. The Ninth Circuit, however, did not find the statement of clarification ‘enough’ to modify an executive order and, since the Order did not differentiate between the statuses, the Court held that the entire section was invalid. This was a mistake by both the Government and the Court. The Government should have issued a modification or amendment to the Order definitively excluding LPRs from its application. Additionally, the Ninth Circuit was remise in muddling all the statuses together and applying LPR constitutional protections to even nonimmigrants, without distinction. It is important to note, that the laws of the U.S. do not apply to those non-citizens outside the U.S. The law views the issuance of visas as a privilege, not as a right, which can be subsequently revoked. Thus, as it relates to non-LPRs, the Order should be valid and enforceable, as found by the Massachusetts Court.
Another challenge faced in Section 3(c) is whether it violates the Equal Protection Clause of the Constitution by treating groups differently (relying on the argument that the 7 countries “of concern” were identified merely because they have a majority Muslim population). The Ninth Circuit and the Massachusetts Court had conflicting decisions. The Ninth Circuit used “religion” to classify those affected; the Massachusetts Court, on the other hand, used the immigration classification of “aliens”. This is significant because a religious classification of alleged discrimination is afforded the highest standard of protection, while alien status is afforded the lowest. That is to say, in order to treat those groups differently based on religion, the state needs to show a compelling state interest for the discriminatory treatment. On the other hand, if the classification is based on alien status, the state only must show that there is a legitimate reason for the discriminatory treatment, a much lower standard. While the Ninth Circuit is the current law in the United States, there is doubt as to whether they were remiss in using a religious classification rather than an immigration one, particularly since, on the face of the Order, religion is not mentioned in this Section 3.
Where it is much easier to question a religion-based violation is in Section 5(b) which allows the Secretary of State, with consultation by the Secretary of Homeland Security, to “…prioritize refugee claims made by individuals on the basis of religious-based persecution, provided that the religion of the individual is a minority religion in the individual’s country of nationality.” The claim is that this Section violates the Establishment Clause in the Constitution by preferring one religion over another. In fact, neither the Ninth Circuit nor the Massachusetts Court ever reach an analysis of this claim since they disposed of their respective cases on other grounds. The States in the Ninth Circuit do not argue that the Order is facially invalid as to religious discrimination; but, due to the intent of the President to ban Muslims — as publicly stated by Trump on various occasions — it is, in effect and application, unconstitutional.
The Government, on the other hand, argues that (1) the refugee suspension applies to all countries — not only to majority-Muslim countries — and (2) the suspension as to the 7 countries was based on the fact that they were safe havens for terrorists and identified as such by various sources, such as the U.S. Congress, the U.S. State Department and even the Obama Administration. Accordingly, since there is not religious preference or non-preference at issue, there is no violation. Since no court has ruled on this issue, there is no clear guidance and the question remains as to whether there is a violation or not in this Section 5.
Interestingly, what did not get much attention were Sections 3(g) and 5(e), which provide for case-by-case review by the Secretary of State in conjunction with the Secretary of Homeland Security “…when the person is already in transit and denying admission would cause undue hardship.” Much of the objections to and criticisms of the Order focused on LPRs, student and worker visa-holders, those in transit, and those who suffered unreasonable hardships. Those criticism and concerns are surely not misplaced and should not be ignored. With that said, pursuant to Sections 3(g) and 5(e), the Order provides for a review mechanism for various cases. The media and the courts were remiss in not giving more attention to these Sections.
How Did It End?
The law aside, the Trump Administration committed serious errors in the manner in which the Order was implemented. First, the Order should have clearly omitted application to LPRs. Secondly, the enforcement should not have been from one minute to the next so as to cause chaos to those in transit. Additionally, airlines and Border Patrol Officers should have been provided with more notice and guidance on the application of the Order. Finally, those student and worker visa-holders should have been provided more notice and deference as to the application of the Order to them, whether they were on U.S. soil or abroad, since they, more than any other alien group, were likely to suffer the most hardship under the Order.
The Government stated that they would not appeal the case to the U.S. Supreme Court. One major issue is that there are currently 8 Justices on the Supreme Court, rather than 9, since the vacancy of late Justice Antonin Scalia has not yet been filled. If there is a 4 to 4 ruling, which is highly possible, the decision of the Ninth Circuit will stand, which would be a huge blow to the Trump Administration.
Despite having other resources and legal options to move forward in the courts, Trump decided instead to issue a new executive order that would demonstrate full compliance with the Ninth Circuit ruling and thus avoiding further objections. The new order was signed on March 6. However, this new order was again challenged and, on March 15, District Courts in Hawaii and Maryland both issued TRO’s blocking its implementation. Since the new order tried to redress some of the Ninth Circuit’s legal concerns, arguments against the new order rely heavily on the President’s intention to religiously discriminate against Muslims, based on the public statements made by Trump himself and other officials from his Administration.
Not all laws or court decisions are perfect and this situation is no exception. The Order, in both form and application, was flawed, although not necessarily unconstitutional, as seen by the Massachusetts District Court. And, the effect of the Ninth Circuit’s ruling can be viewed as overbroad and overreaching thereby not allow for the appropriate administration of justice to all the parties. The Massachusetts Court, ruling in favor of the Trump Administration, provided a more meaningful and complete analysis of the crucial issues at stake. It is unfortunate that the Ninth Circuit was not as acute in its decision. Despite what is defective or not, what is clear is that the U.S. Constitution and its institutions are alive and working, and functioned appropriately to keep a clear distinction between the Office of the President and Trump the man.
